JOHN R. BLOCK, SECRETARY OF AGRICULTURE, ET AL., PETITIONERS V. RONALD E. PAYNE, ET AL. No. 84-1948 In the Supreme Court of the United States October Term, 1985 On Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit Brief for the Petitioners PARTIES TO THE PROCEEDING In addition to the Secretary of Agriculture, the Administrator of the Farmers Home Administration, the State Director and Assistant State Director of the agency's Florida office, the FmHA County Supervisor for Madison County, Florida, and a District Supervisor of the FmHA were defendants below and are petitioners in this Court. /*/ In addition to Ronald E. Payne, Carbie Ellie was an individual plaintiff below and is a respondent in this Court. Payne and Ellie were certified as representatives of a class of farmers in a 13-county area of north Florida covered by presidential disaster declaration M-345 who suffered losses from floods or storms in early April 1973 and who were eligible to apply for emergency loans administered by the FmHA but were not so notified by the agency (Pet. App. 46a-47a). In the district court, James H. Collins attempted to intervene as a plaintiff representing a class of farmers in 27 states and Puerto Rico who had suffered losses as a result of natural disasters occurring between December 27, 1972, and April 19, 1973, and who had been eligible to apply for emergency loans. Collins appealed unsuccessfully from the denial of his motion to intervene (Pet. App. 27a-29a). TABLE OF CONTENTS Questions Presented Parties to the Proceedings Opinions below Jurisdiction Statutes and regulations involved Statement Summary of argument Argument: The Secretary of Agriculture may not be estopped from enforcing the valid legal deadline for filing emergency loan applications A. The government may not be estopped from enforcing valid legal conditions on the receipt of public benefits B. This case is governed by this court's precedents precluding estoppel of the government because the court of appeals' decision bars the Secretary of Agriculture from enforcing the emergency loan application deadline 1. The loan application deadline is a valid legal condition on the receipt of public benefits 2. The decision of the court of appeals impermissibly estops the government from enforcing the loan application deadline 3. The court of appeals' decision conflicts with this Court's estoppel precedents C. Even if the government may be estopped in some circumstances, estoppel is clearly inappropriate in this case because respondents failed to satisfy the requirements for estoppel of a private party D. Barring the Secretary from enforcing the emergency loan application deadline is not a permissible remedy for violation of FmHA's publicity directive Conclusion OPINIONS BELOW The opinion of the court of appeals on remand from this Court (Pet. App. 1a-3a) is reported at 751 F.2d 1191. The initial opinion of the court of appeals (Pet. App. 4a-29a) is reported at 714 F.2d 1510. The supplemental opinion of the court of appeals on petition for rehearing (Pet. App. 30a-33a) is reported at 721 F.2d 741. The opinion of the district court (Pet. App. 34a-45a) is unreported. JURISDICTION The judgment of the court of appeals on remand from this Court was entered on January 31, 1985. A petition for rehearing was denied on March 19, 1985 (Pet. App. 65a-66a). The petition for a writ of certiorari was filed on June 14, 1985, and was granted on October 7, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED Sections 4 and 10(c) of Pub. L. No. 93-237, 87 Stat. 1024-1025, Sections 1, 3, 4 and 8 of Pub. L. No. 93-24, 87 Stat. 24-25, and Section 5 of Pub. L. No. 92-385, 86 Stat. 557-559, are set forth at Pet. App. 59a-64a. The applicable regulations, 7 C.F.R. 1832.-81-1832.83 (1975), are set forth in pertinent part at Pet. App. 53a-55a. QUESTION PRESENTED Whether the Secretary of Agriculture may be equitably estopped from enforcing a valid regulation establishing a deadline for filing of applications for Farmers Home Administration emergency loans on the ground that the agency's news release announcing the availability of loans did not specify the generous terms of the loan program. STATEMENT 1. a. For many years the Farmers Home Administration of the Department of Agriculture has administered a program of emergency loans designed to facilitate continuation of farming operations by farmers who have suffered crop losses or property damage as a result of natural disasters such as floods, storms, or drought. See Consolidate Farm and Rural Development Act Sections 321-330, 7 U.S.C. 1961-1971. From time to time Congress has adjusted the interest rates, credit condition and forgiveness of indebtedness provisions of the emergency loan program. Generally, however, if crop yields are substantially and adversely affected by a formally declared natural disaster and losses are not covered by insurance, an affected farmer may apply for an emergency loan. See 7 U.S.C. 1961; 7 C.F.R. Pt. 1945; 7 C.F.R. Pt. 1832 (1974). b. In early April 1973, heavy rains caused flooding, crop losses and property damage in a 13-county area of northern Florida. On May 26, 1973, the President declared this region to be a major disaster area. Pursuant to Section 321 of the Consolidated Farm and Rural Development Act, 7 U.S.C. 1961, the Secretary of Agriculture was then authorized to make emergency loans to farmers suffering losses in the affected area. Under the terms of the emergency loan program in effect at the time of the disaster designation, emergency loans bore an interest rate of 5%, and applicants were required to show inability to obtain credit from ordinary commercial sources. See Pub. L. No. 93-24, Sections 3, 4, 87 Stat. 24-25. No provision was made for cancellation of any portion of the principal amount of the loan. /1/ FmHA required applications for loans to cover crop losses to be filed within nine months of the formal disaster declaration. Thus, in the case of the north Florida floods of April 1973, applications were due no later than February 26, 1974. Pet. App. 4a-6a. Apparently no loans were made in the north Florida disaster area during this period (id. at 9a). On January 2, 1974, however, Congress liberalized the terms and conditions for FmHA emergency loans with respect to natural disasters occurring between December 27, 1972, and April 20, 1973. The new law made available emergency loans bearing a 1% interest rate for eligible farmers who had suffered losses in this interval, authorized cancellation of 50% of the principal amount of indebtedness, up to $5,000, and dispensed with the requirement that applicants show the unavailability of credit from other sources. Pub. L. No. 93-237, Section 4, 87 Stat. 1024. /2/ Congress directed that the Secretary of Agriculture "extend for ninety days after the date of (the new) enactment" the otherwise applicable deadline for seeking emergency loan assistance, if the administrative deadline based on the date of the disaster declaration was earlier. Pub. L. No. 93-237, Section 10(c), 87 Stat. 1025; see H.R. Rep. 93-363, 93d Cong., 1st Sess. 2 (1973). The effect of this provision was to enlarge the deadline for north Florida farmers to apply for emergency loans from February 26, 1974, through April 2, 1974, and to make available more favorable loan terms than previously had been offered. On February 15, 1974, FmHA issued instructions to its staff and rules to implement the special emergency loan program created by Pub. L. No. 93-237. Initially issued as staff Special Instruction 441.5 in unpublished form, the directive was published without material change in the Federal Register on February 27, 1974. 7 C.F.R. Pt. 1832, Subpt. E, at 39 Fed. Reg. 7569. /3/ The Federal Register publication included all pertinent details concerning the terms and conditions of the special emergency loan program, including the 1% interest rate, the forgiveness provision, and the absence of any requirement that unavailability of other credit be demonstrated. 7 C.F.R. 1832.82(a) and 1832.83(a), at 39 Fed. Reg. 7570-7571 (1974) (Pet. App. 54a-55a). The regulations also specified that "the termination date for acceptance of applications * * * will be April 2, 1974" (id. at 54a). In addition, although Pub. L. No. 93-237 did not require that the special loan program be publicized in any special manner, the agency's staff instructions stated: State Directors and County Supervisors will inform the news media including newspapers, radio, and television in the affected counties of the provisions of P.L. 93-237. A suggested news release for local use is attached as Exhibit C. Pet. App. 49a, 54a. /4/ The "suggested news release" was transmitted by the state FmHA director to local agency offices on February 28, 1974, and was in turn "forwarded to the local media" (id. at 10a). /5/ The press release, which was carried in at least two newspapers in the north Florida disaster area (see DX 11A and 11B, C.A. App. 48a, 49a), advised farmers that they could apply for emergency loans from FmHA under Pub. L. No. 93-237 if they suffered property or crop losses as a result of the April 1973 flooding, and that the application period would close on April 2, 1974. Only a handful of loan applications were received in this period. Pet. App. 24a. 2. Respondent Payne, a north Florida farmer, filed this action in the United States District Court for the Middle District of Florida on August 19, 1976. Although respondent Payne had received actual notice of the special 1974 emergency loan program, had applied for a loan, and had received one, he brought suit on behalf of a class of roughly 2500 farmers in the 13-county area covered by the May 26, 1973 disaster declaration who allegedly had been eligible for loans under the 1974 program. Contending that the class members had been denied property without due process by inadequacies in the publicity given to the special loan program, and that FmHA had violated its own regulations governing publicity, respondent sought entry of an injunction directing that the 1974 loan program be reopened. C.A. App. 56a-61a. /6/ The district court certified a class consisting of all farmers in the 13-county area covered by the May 26, 1973 disaster declaration who suffered damages as a result of the natural disaster, were eligible to apply for emergency loans, and were not so notified (Pet. App. 44a). In an opinion issued on February 11, 1981, the court held that the publicity given to the emergency loan program in 1973-1974 by the responsible FmHA offices did not satisfy the requirements of general agency publicity regulations, including a directive to make "such public announcements as appear appropriate" (7 C.F.R. 1832.3(a)(1) (1973) ). Pet. App. 42a-43a. Accordingly, the court enjoined FmHA to reopen the 1974 emergency loan program in the 1973 north Florida disaster area, directed the agency to give notice of the reopened program, and required it to process applications under the eligibility requirements prevailing in 1974 and to make loans upon the terms that were applicable in 1974 (id. at 43a-45a). /7/ 3. a. On appeal, the government argued that by mandating reopening of the long closed 1974 emergency loan program, in disregard for the applicable deadline established by law, the district court had impermissibly estopped the United States from enforcing lawful conditions upon the receipt of public benefits, contrary to Schweiker v. Hansen, 450 U.S. 785 (1981), and FCIC v. Merrill, 332 U.S. 380 (1947). The government also argued that the publicity given to the 1973 and 1974 emergency loan programs in north Florida met any judicially enforceable legal requirements. /8/ b. The court of appeals affirmed (Pet. App. 4a-29a). The court held that the publicity given to the special 1974 emergency loan program created by Pub. L. No. 93-237 in the north Florida disaster area was inadequate. The court reasoned that the press release disseminated by the state and local FmHA offices "failed to 'inform the news media . . . of the provisions of P.L. 93-237'" (Pet. App. 25a (quoting 39 Fed. Reg. 7570 (1974); emphasis added by the court of appeals ) ) because it did not mention the reduced interest rate, the possibility of partial cancellation of the debt, or the waiver of any requirement that the unavailability of alternative sources of credit be demonstrated. The court thus concluded that the agency had failed to comply with its own publicity regulations governing the special 1974 emergency loan program (Pet. App. 25a, 27a n.35). /9/ The court of appeals also rejected the government's contention that the district court lacked authority to require reopening of the 1974 loan program (Pet. App. 14a-22a). Initially, the court of appeals held that Section 10(c) of Pub. L. No. 93-237 (see page 4, supra) did not establish a statutory deadline for the filing of applications under the special 1974 emergency loan program. The court of appeals held that the statute merely mandated a minimum extension of administratively set deadlines, to ensure that those deadlines did not expire before eligible farmers had an opportunity to apply for assistance. The court concluded that the Secretary had authority to prescribe filing deadlines and, in the circumstances presented, could extend, or could be ordered (under the Administrative Procedure Act) to extend, the deadline for the 1974 loan program beyond April 2, 1974. Pet. App. 16-19a. The court of appeals stated that it did not "condone the failure of potential loan applicants to follow legitimate time restrictions set as a prerequisite to applying for government benefits" (Pet. App. 18a). In the court's view, however, FmHA's failure to give the special 1974 emergency loan program fuller publicity created "exigent circumstances beyond the farmers' control (that) precluded intended beneficiaries from applying for loans," and justified the district court's order that the agency "extend the loan period" (id. at 18a, 19a). Citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), and Morton v. Ruiz, 415 U.S. 199 (1974), the court of appeals stated that reopening of the 1974 loan program was simply an application of the principle that agencies must abide by their own regulations (Pet. App. 19a, 21a-22a). The court of appeals rejected the contention that Schweiker v. Hansen, supra, was controlling here (Pet. App. 19a-21a). The court's primary ground for distinguishing Hansen was that reopening the emergency loan program would "not threaten the public fisc" because "(l)oans * * * presumably are repaid" (Pet. App. 21a). The court also reasoned that this case involved "failure on the part of an entire agency to follow self-imposed regulations" (id. at 20a), rather than a negligent act of an individual government employee (id. at 19a-20a). Finally, the court of appeals remarked that "the error in Hansen was revocable," but that the agency omission in this case was not (id. at 20a-21a). c. The court of appeals issued a brief supplemental opinion in response to the government's petition for rehearing (Pet. App. 30a-33a). The court stated that "while any language (in its opinion) categorizing" FmHA's publicity directive "as a regulation may have been overbroad," the result reached was correct because the courts are authorized to compel agencies to comply with their "internal administrative procedures" (id. at 32a). 4. The government then sought further review in this Court, suggesting dispostion as appropriate in light of Heckler v. Community Health Services, No. 83-56, then pending. Following the Court's decision in Community Health Services, the Court granted the petition, vacated the court of appeals' judgment, and remanded the case for further consideration in light of Community Health Services. Block v. Payne, No. 83-1691 (Oct. 1, 1984). 5. On remand, the court of appeals reinstated its prior decision (Pet. App. 1a-3a), suggesting that its judgment did not depend on application of equitable estoppel (id. at 2a; emphasis in original): We have considered the opinion of the Supreme Court (in Community Health Services) and conclude that it does not control the decision in the case sub judice. The liability of the United States Department of Agriculture in this case is based upon the failure of its agency, The Farmers Home Administration, to follow law enacted by Congress, and its own regulations. The plaintiffs did not seek relief based on reliance upon agency action that created an estoppel. The plaintiffs alleged and proved to the satisfaction of the district court that the agency failed to act in accordance with the law. The court of appeals explained (ibid.) that its decision rested on the view that "government agents must be aware of the law and must obey it, just as private (parties) were required (to do) in (Community Health Services)." SUMMARY OF ARGUMENT The court of appeals' decision requires the Secretary of Agriculture to reopen a multi-million dollar program of emergency loans designed by Congress to provide farmers with short-term financial relief from crop and property losses that were suffered more than a decade ago. In so holding, the court of appeals has barred enforcement of a published regulation, having the force and effect of law, that established April 2, 1974 as the deadline for filing applications for such loans. This remedy constitutes an impermissible estoppel of the government. The court of appeals' continued refusal (Pet. App. 2a-3a), on remand from this Court for reconsideration in light of Heckler v. Community Health Services, No. 83-56 (May 21, 1984), to acknowledge the controlling effect of this Court's strictures against estopping the government is in error. A. This Court has without exception refused to estop the government from enforcing valid statutory or regulatory conditions of eligibility for the receipt of public benefits. See, e.g., Heckler v. Community Health Services, supra; INS v. Miranda, 459 U.S. 14 (1982); Schweiker v. Hansen, 450 U.S. 785 (1981). This rule serves the public interest by protecting the government in general and the public fisc in particular from the consequences of errors made by government employees and officials. "When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined." Community Health Services, slip op. 8. B. The remedy ordered by the district court and affirmed by the court of appeals unquestionably estops the government. Under the decision below, the Secretary is required to process loan applications without regard to their untimeliness under the valid legal deadline of April 2, 1974. This relief possesses the classic identifying trademark of an estoppel: it "prevent(s) the one against whom it operates from pleading the truth," Restatement (Second) of Agency Section 8B, comment a (1958) -- here, that any loan applications now filed would be more than a decade out of time. Such a result is plainly foreclosed by this Court's cases, which make clear that courts are not authorized "to overlook any * * * valid requirement for the receipt of (government) benefits." Schweiker v. Hansen, 450 U.S. at 790; see, e.g., INS v. Hibi, 414 U.S. 5 (1973); FCIC v. Merrill, 332 U.S. 380 (1947). The reasons given by the court of appeals for distinguishing these cases are insubstantial. The estoppel in this case implicates precisely the concerns on which the doctrine forbidding estoppel against the government is based. The remedy ordered below requires the expenditure of funds -- including an outright grant of $5,000 to each qualifying applicant -- in a manner not contemplated by Congress. The emergency loan program was designed only to tide farmers over the immediate shock of the 1973 disaster. Making funds available at this late date cannot possibly serve that purpose. C. Even apart from the special concerns noted above, there is no basis on which to estop the government in this case because a private defendant would not be subject to estoppel in these circumstances. See Heckler v. Community Health Services, supra. Respondents could not reasonably have relied on any shortfall of information in FmHA's press release because the information provided was sufficient to alert them to the existence of the loan program and because full legal notice was provided in the Federal Register. There was in any event no violation of the publicity regulation because the press release fully comported with that directive. D. The court of appeals erred by failing to heed these principles and relying instead on the Administrative Procedure Act and the concomitant obligation of agencies to abide by their own regulations. The relief ordered by the courts below -- essentially a thinly disguised form of damages -- is not authorized by the APA. The requirement that agencies follow their own regulations cannot be manipulated, as it was here, to fashion a remedy that circumvents the strictures on equitable estoppel against enforcement of valid legal requirements. None of this Court's cases establishes that a regulation may be rendered a nullity as a sanction for an agency's violation of some other rule. ARGUMENT THE SECRETARY OF AGRICULTURE MAY NOT BE ESTOPPED FROM ENFORCING THE VALID LEGAL DEADLINE FOR FILING EMERGENCY LOAN APPLICATIONS The court of appeals held that the Secretary of Agriculture must reopen a long-expired emergency loan program and process applications without regard to their untimeliness under a binding regulation. This result contravenes the well-established rule that the government may not be estopped in circumstances such as those presented here. It will require the government to provide substantial monetary windfalls to the respondent class in contravention of Congress's intent that program funds be expended solely to help farmers over the immediate emergency presented by the 1973 flooding. A. The Government May Not Be Estopped From Enforcing Valid Legal Conditions On The Receipt Of Public Benefits Since its earliest cases, the Court has consistently and repeatedly held that the government may not be equitably estopped from enforcing the laws. See, e.g., Lee v. Munroe, 11 U.S. (7 Cranch) 366 (1813); Gibbons v. United States, 75 U.S. (8 Wall.) 269, 274 (1868); Hart v. United States, 95 U.S. 316, 318-319 (1877); Pine River Logging Co. v. United States, 186 U.S. 279, 291 (1902); Utah Power & Light Co. v. United States, 243 U.S. 389, 408-409 (1917); Sutton v. United States, 256 U.S. 575, 579 (1921); Utah v. United States, 284 U.S. 534, 545-546 (1932); Wilber National Bank v. United States, 294 U.S. 120, 123-124 (1935); United States v. Stewart, 311 U.S. 60, 70 (1940); FCIC v. Merrill, 332 U.S. 380 (1947); Automobile Club v. Commissioner, 353 U.S. 180, 183 (1957); Montana v. Kennedy, 366 U.S. 308, 314-315 (1961); INS v. Hibi, 414 U.S. 5, 8 (1973); Schweiker v. Hansen, 450 U.S. 785 (1981); INS v. Miranda, 459 U.S. 14, 17-19 (1982); Heckler v. Community Health Services, No. 83-56 (May 21, 1984), slip op. 8. We are not aware of any decision of this Court holding that equitable estoppel lies against the government in any circumstance. /10/ The doctrine that the government may not be equitably estopped from enforcing the laws is grounded in reason and necessity and, ultimately, on sovereign immunity and the constitutional principle of separation of powers. The doctrine serves the public interest by protecting the government (and the public treasury) from the consequences of errors by its employees and officials, protection that is necessary if the Executive is to fulfill its constitutional responsibility of faithfully executing the duties assigned to it by Congress. Like the rules that the sovereign is exempt (except where Congress otherwise provides) from the consequences of its laches and from the operation of statutes of limitation, the doctrine that the government may not be equitably estopped "is supportable now because its benefit and advantage extend to every citizen, included the (party), whose plea * * * it precludes." Guaranty Trust Co. v. United States, 304 U.S. 126, 132 (1938); see also Costello v. United States, 365 U.S. 265, 281 (1961); United States v. Hoar, 26 F. Cas. 329, 330 (C.C.D. Mass. 1821) (No. 15373) (Story, Circuit Justice). If the judiciary were free to impose otherwise unauthorized liability on the government, based only on its own notions of equity, the mandates of Congress could easily be overriden. The effect of estopping the government is to raise employees and other representatives of the Executive Branch to the status of legislators by refusing to enforce valid legal rules on the basis of their conduct. Thus, "(w)hen the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined." Community Health Services, slip op. 8. Such a result is of special concern where, as here, the estoppel would expend itself on the public treasury in contravention of binding legal restrictions. See U.S. Const. Art. 1, Section 9, Cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law"); Community Health Services, slip op. 11 ("(p)rotection of the public fisc requires that those who seek() public funds act with scrupulous regard for the requirements of law"); Schweiker v. Hansen, 450 U.S. at 788, quoting FCIC v. Merrill, 332 U.S. at 385 (courts must be careful "'to observe the conditions defined by Congress for charging the public treasury'"). B. This Case Is Governed By This Court's Precedents Precluding Estoppel Of The Government Because The Court Of Appeals' Decision Bars The Secretary Of Agriculture From Enforcing The Emergency Loan Application Deadline. 1. The loan application deadline is a valid legal condition on the receipt of public benefits. The regulations that applied to the special 1974 emergency loan program for north Florida unambiguously provided: "(T)he termination date for acceptance of applications based on both physical and production losses will be April 2, 1974." 7 C.F.R. 1832.82(a) (1975) (Pet. App. 54a). Even assuming that Congress did not establish a statutory deadline for filing applications under the 1974 emergency loan program in Section 10(c) of Pub. L. No. 93-237 (see page 9, supra), there can be no doubt that the deadline reflected in the regulation has the force and effect of law. Pursuant to Section 339 of the Consolidated Farm and Rural Development Act, 7 U.S.C. 1989, the Secretary of Agriculture is authorized "to make such rules and regulations (and to) prescribe the terms and conditions for making * * * loans * * * as he deems necessary" to carry out the agricultural loan programs under his supervision. Thus, the Secretary was vested with authority to adopt a deadline, having legislative effect, for filing of loan applications. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., No. 82-1005 (June 25, 1984), slip op. 5; Batterton v. Francis, 432 U.S. 416, 425 & n.9 (1977). The Secretary explicitly invoked this substantive rulemaking authority in promulgating the regulation that contains the April 2, 1974 deadline for filing loan applications. See 7 C.F.R. Pt. 1832, Supt. E (1975) (Pet. App. 53a). Moreover, the deadline regulation was promulgated as a substantive rule in accordance with the requirements of the Administrative Procedure Act (APA). /11/ The April 2, 1974 deadline for filing of emergency loan applications accordingly has "the substantive characteristics" and is the "product of (the) procedural requisites" that vest a regulation with the "force and effect of law." Chrysler Corp. v. Brown, 441 U.S. 281, 301 (1979). Indeed, the court of appeals seemed to acknowledge as much, describing the deadline as a "legitimate time restriction() set as a prerequisite to applying for governmental benefits" (Pet. App. 18a). The fact that the application deadline was established by regulation rather than by statute is therefore irrelevant, as this Court made clear in Schweiker v. Hansen, 450 U.S. at 790, where it similarly refused to estop the government from relying on a valid regulatory condition on eligibility for government benefits. See also FCIC v. Merrill, 332 U.S. at 384-385 (government not estopped from enforcing crop insurance regulations to any greater extent than it would be from enforcing underlying statute). 2. The decision of the court of appeals impermissibly estops the government from enforcing the loan application deadline. a. The decision of the court of appeals requires the Secretary to reopen the 1974 emergency loan program and to accept applications without regard to their untimeliness under the established filing deadline on the ground that the agency failed adequately to publicize the details of the program. This is an estoppel plain and simple: under the decision below, "the Government is unable to enforce the law because (of) the conduct of its agents." Community Health Services, slip op. 8. This Court has consistently recognized that its strictures against estoppel of the government are called into play whenever a private party seeks to prevent enforcement of a valid legal condition on receipt of government benefits. See, e.g., INS v. Miranda, 459 U.S. at 15 (condition on granting of permanent resident status); INS v. Hibi, 414 U.S. at 8 (condition on naturalization); FCIC v. Merrill, 332 U.S. at 384-385 (condition on availability of crop insurance). As the Court emphasized in Schweiker v. Hansen, 450 U.S. at 790, courts are not authorized "to overlook any * * * valid requirement for the receipt of (government) benefits." Equitable estoppel "works (in a) * * * peculiar procedural way * * *, that is, by preventing the one against whom it operates from pleading the truth." Restatement (Second) of Agency Section 8B, comment a (1958). That is precisely the result of the court of appeals' decision, regardless of that court's stubborn refusal (Pet. App. 2a-3a) to recognize the applicable descriptive term and doctrine even after this Court remanded for further consideration in light of Community Health Services. The Secretary is foreclosed from raising the truth -- that any loan applications to be filed by respondents would now be well over a decade out of time under a binding regulation having the force and effect of law. This is an estoppel. /12/ b. The application of estoppel under these circumstances implicates the very concerns on which the Court's doctrine precluding estoppel of the government is based. It prevents the government from enforcing the law and requires the expenditure of public funds in a manner not contemplated by Congress simply on the ground that FmHA failed to comply with another provision of law. The application deadline stated in categorical terms that "the termination date for acceptance of applications * * * will be April 2, 1974." 7 C.F.R. 1832.32(a) (1975) (Pet. App. 54a (emphasis added)). It was not made to depend on the quantum of publicity given to the loan program, nor was provision made in the regulations for waiver of the deadline for those persons who did not receive actual notice of the program. /13/ Rather, the objective of the deadline set forth in the regulations was to ensure that the loans would be used only to satisfy the purpose for which they were intended: to tide farmers over from the immediate shock of the 1973 natural disaster, "in order that they may continue their future farming or livestock operations with credit from other sources." 7 C.F.R. 1832.81 (1975) (Pet. App. 53a). The loans were available only "to reimburse applicants for production expenses which went into damaged or destroyed crop and livestock," not for the purpose of "produc(ing) new crops" in succeeding years. 7 C.F.R. 1832.86(a), at 39 Fed. Reg. 7573 (1974). There is no reason to believe that those persons who suffered losses in 1973 continue today to have unredressed needs from that time that could now be met by emergency assistance. Conversely, any need that might exist today in a particular case cannot realistically be traced to the 1973 north Florida flooding. The generous terms of the loans, including forgiveness of $5,000 of the debt and the 1% interest rate, will simply provide a substantial monetary windfall to those who obtain them, in contravention of Congress's purpose in establishing the emergency disaster loan program, a purpose that the application deadline was designed to achieve. This windfall will impose a significant monetary burden on the government in contravention of the limitation lawfully imposed by the filing deadline, a result consistently prohibited by this Court. In fact, the forgiveness provision ensures that each "loan" will include an outright grant of $5,000. Extending such relief to the estimated 2500 members of the class certified in this case would cost the government $12.5 million in direct outlays; this cost will be greatly magnified if the unsuccessful intervenor in this case succeeds in extending the court of appeals' ruling to benefit a nationwide class in his separate action pending in the district court in Georgia (see page II, supra; Pet. App. 27a-29a & n.42). Moreover, the 1% interest rate constitutes a substantial subsidy in light of prevailing market rates. Finally, there is in any event "no indication (in the Court's cases) that the Government would be estopped in the absence of (a) potential burden on the fisc." INS v. Miranda, 459 U.S. at 19; see also INS v. Hibi, supra; Montana v. Kennedy, supra. 3. The court of appeals' decision conflicts with this Court's estoppel precedents. This Court has consistently held that the government cannot be estopped in circumstances similar to those presented here. In INS v. Hibi, supra, for example, Congress had established a program for naturalization of aliens who served in this country's armed forces during the Second World War and specified a deadline for filing naturalization petitions under the special program. 414 U.S. at 6-7. The Court refused to estop the government from "enforcing the cutoff date," which embodied "the public policy established by Congress" (id. at 8), on the ground that the government had not "fully publicize(d) the rights which Congress accorded under the Act" (id. at 8-9). The same result should pertain here. Similarly, in Schweiker v. Hansen, supra, a Social Security Administration claims representative incorrectly informed a claimant that she could not qualify for benefits and failed, contrary to the agency's Claims Manual, to recommend that she nonetheless file a written application (450 U.S. at 786). Such an application was required under agency regulations promulgated pursuant to authority delegated by Congress (id. at 790). The Court refused to estop the agency from denying to the claimant benefits that she would have received had she been advised to make a written application and filed one at the time of her interview with the claims representative, notwithstanding the representative's violation of the Claims Manual. /14/ While the court of appeals appeared to recognize the relevance of Hansen, the flimsy bases on which it attempted to distinguish the case (Pet. App. 20a-21a) are completely meritless. The "most important difference" (id. at 21a) in its view -- that the instant case involves no threat to the public fisc -- has already been discussed (pages 22-23, supra). The court of appeals also reasoned that this case involves "failure on the part of an entire agency to follow self-imposed regulations" rather than negligence by a single employee, as in Hansen (Pet. App. 20a). But the rule against estoppel in government cases plainly is not limited to situations in which an individual employee acts in a manner that adversely affects the interests of an applicant for a benefit. For instance, the delay in processing a petition for adjustment of immigration status at issue in INS v. Miranda, supra, was not attributed to any employee's conduct, but was assessed on the premise that it was the act of the Immigration and Naturalization Service as a whole. 459 U.S. at 18 & n.3. Similarly, the suspension within the Philippines of the special overseas naturalization program in INS v. Hibi, supra, was ordered by the Attorney General, in consultation with the Commissioner of Immigration, and reflected the official policy of the United States. See 414 U.S. at 10-11 (Douglas, J., dissenting); see also United States v. Mendoza, 464 U.S. 154, 156 (1984). These cases make clear that the source of conduct alleged to give rise to an estoppel is not material (except perhaps as it might go to the presence of affirmative misconduct, which was not shown here, see page 24 note 14, supra). Given the important public interest in scrupulous observance of the law, the government cannot be equitably estopped from enforcing a valid law on the basis of a misstep by several of its employees any more than by one of them. The court of appeals also thought Hansen distinguishable on the ground that the erroneous advice of the claims representative there was "revocable" -- i.e., that action taken by the applicant for benefits was not irreversible. By contrast, the court reasoned, respondents could not now obtain loans under the 1974 emergency loan program because the application period has closed (Pet. App. 20a-21a). The court of appeals misapprehended the thrust of this Court's statement in Hansen (450 U.S. at 789) that the government employee's conduct there "did not cause respondent to take action, cf. Federal Crop Insurance Corp v. Merrill, supra, or fail to take action, cf. Montana v. Kennedy, supra, that respondent could not correct at any time." The Court could not have meant that the Social Security applicant's action in the wake of receiving erroneous advice had no irreversible impact upon her ability to receive benefits, for she did not receive all of the benefits that she might have absent the erroneous advice. 450 U.S. at 786-787. Thus, the Court's observation indicated only that the conduct of the government employee did not prevent the applicant from filing a written application had she desired to do so. This case falls squarely under the rule applied by the Court in Hansen. The FmHA's failure adequately to publicize the terms of loans available under the special 1974 program did not prevent respondents from applying for loans, /15/ and their eligibility for FmHA loans in time periods subsequent to April 2, 1974 was unaffected by the agency's conduct in 1974. The FmHA's action thus "did not cause respondent(s) to take action" or "fail to take action" that they "could not correct at any time" permitted by law. 450 U.S. at 789. In any event, it is not a requirement of the rule prohibiting estoppel that private action taken in the wake of an agency error be even partially reversible. See, e.g., Montana v. Kennedy, supra (alien lost opportunity for citizenship); FCIC v. Merrill, supra (farmer lost opportunity to insure crops). /16/ C. Even If The Government May Be Estopped In Some Circumstances, Estoppel Is Clearly Inappropriate In This Case Because Respondents Failed To Satisfy The Requirements For Estoppel Of A Private Party. In Heckler v. Community Health Services, supra, the Court made clear (slip op. 9) that "however heavy the burden might be when an estoppel is asserted against the Government, the private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present." These elements include the claimant's "reasonable (detrimental) reliance" (id. at 14) on "'a definite misrepresentation of fact'" (id. at 7, quoting Restatement (Second) of Torts Section 894(1) (1977)) or other misleading conduct by the party to be estopped. These prerequisites to application of equitable estoppel have not been satisfied in this case. 1. Assuming for the moment that FmHA's press release violated the publicity undertaking in the agency's regulations, respondents could not reasonably have relied on the shortfall in information contained in the press release as a reason for not applying for a loan before the April 2, 1974 deadline. The flaw in the agency's performance identified by the court of appeals was simply the failure of the press release to specify all of the details of the emergency loan program. Pet. App. 25a. But it is undisputed that the press release disseminated to the media contained the critical information that a new program of emergency loans was available to persons who suffered crop losses in the April 1973 flooding in north Florida. See id. at 54a-55a. Plainly this information was sufficient to alert any farmer who might have been eligible and interested in securing a loan that the opportunity was at hand and that he should make an appropriate inquiry concerning the precise terms of the new loan program. See Community Health Services, slip op. 13; see also Atkins v. Parker, No. 83-1660 (June 4, 1985), slip op. 15. In addition, the details of the loan program were accurately presented in their entirety in the Secretary's Federal Register notice. See Pet. App. 54a-55a. Publication in the Federal Register "is sufficient to give notice of the contents of the document to a person subject to or affected by it." 44 U.S.C. 1507. Respondents, like "(a)ll citizens(,) are presumptively charged with knowledge of the law." Atkins v. Parker, slip op. 14. And like the respondent in Community Health Services, they "should have been * * * acquainted" with "(t)he relevant * * * regulations" (slip op. 12-13). Respondents' reliance on their lack of actual awareness of the details of the special emergency loan program cannot be deemed reasonable when they are at the same time charged by law with full knowledge of the program. See ibid.; see also FCIC v. Merrill, 332 U.S. at 384-385 (claimant could not estop government on basis of agent's misrepresentation of law where applicable regulations had been published in the Federal Register, "giv(ing) legal notice of their contents"). 2. In any event, respondents failed to demonstrate that FmHA engaged in the sort of misleading conduct that could have given rise to an estoppel of a private party. The court of appeals' conclusion that the agency press release failed to satisfy FmHA's self-imposed obligation to "inform the news media * * * of the provisions of P.L. 93-237" (Pet. App. 54a; see id. at 24a-25a) is demonstrably erroneous. /17/ In the first place, the court of appeals overlooked the fact that Pub. L. No. 93-237 covered a host of subjects unrelated to the 1974 loan program. The relevant provision, Section 4, simply revived, temporarily, a program that had previously been in effect in 1972. See page 4 & note 2, supra. Neither the interest rate applicable to that program nor the forgiveness provision is even mentioned in Pub. L. No. 93-237. In these circumstances, the press release, which mentioned the availability of a new loan program and the pertinent deadline and advised interested persons as to how to secure more information, was entirely consistent with the publicity directive requiring that the local media be advised "of the provisions of P.L. 93-237." Moreover, in determining whether an agency has violated its own regulations, substantial deference should be accorded to the agency's contemporaneous interpretation of the requirements in issue. See, e.g., United States v. Larionoff, 431 U.S. 864, 872 (1977); Udall v. Tallman, 380 U.S. 1, 16-17 (1965). In this case it is demonstrable, virtually to a certainty, that the agency's publicity directive was not intended to require that the details of the loan terms be disseminated through the media. As already discussed (pages 5-6 & note 5, supra), this directive was accompanied by a suggested news release which was the very release actually employed in north Florida. The suggested release obviously reflected FmHA's contemporaneous understanding of the publicity requirement. The finding of agency noncompliance with its own regulations is thus completely insupportable. Commenting on essentially identical facts in Emergency Disaster Loan Ass'n, Inc. v. Block, 653 F.2d 1267 (9th Cir. 1981), Judge Boochever stated (id. at 1272 (concurring opinion)): While that release did not set forth some of the material provisions of the new law, it is not disputed that the state officials sent out news releases embodying the provisions of the suggested one. There was thus substantial compliance with the directive. For these reasons, the agency neither misrepresented the extent of the publicity that it would give to the loan program nor violated its self-imposed duty to publicize the provisions of Pub. L. No. 93-237. Respondents have therefore failed to establish this prerequisite to application of the doctrine of equitable estoppel, in addition to their failure to demonstrate reasonable reliance. D. Barring The Secretary From Enforcing The Emergency Loan Application Deadline Is Not A Permissible Remedy For Violation Of FmHA's Publicity Directive. The court of appeals apparently viewed its decision as a routine exercise of judicial authority under the Administrative Procedure Act to require FmHA to abide by its own regulations. See Pet. App. 13a-14a n.20, 19a, 21a-22a & n.29. The court of appeals underscored this aspect of its reasoning in its supplemental opinion on denial of rehearing (id. at 31a). On remand from this Court, the court of appeals reinstated its earlier decision, concluding that Community Health Services is inapplicable because respondents here "did not seek relief based on reliance upon agency action that created an estoppel." Pet. App. 2a. The court of appeals' analysis is insupportable. As we have already shown (pages 19-23, supra), the relief awarded in this case is indistinguishable from an estoppel. Moreover, it finds no sanction in the APA or in the corollary doctrine that agencies are generally required to abide by their own regulations. 1. We note, initially, that this suit cannot be considered one for judicial review of final agency action pursuant to 5 U.S.C. 702 and 704. See FTC v. Standard Oil Co., 449 U.S. 232 (1980). Respondent Payne sought and received a loan under the 1974 emergency loan program (see page 6, supra). With that single exception, there is no allegation that either the other representative plaintiff or any other member of the class has ever applied -- even tardily -- to FmHA for a loan under the program here at issue. Nor has any respondent otherwise requested that the agency waive the April 2, 1974 loan application deadline. This is not a mere failure to exhaust rights of administrative appeal. Respondents simply have not at any point been subjected to reviewable agency action. See Mathews v. Eldridge, 424 U.S. 319, 328 (1976). As a result, there is no record on which the court of appeals could have determined the reasonableness of agency action. In these circumstances it is difficult, wholly apart from the estoppel question, to conclude that the relief awarded here is authorized by the APA. See generally United States v. Caceres, 440 U.S. 741, 754 (1979) ("(T)his is not an APA case, and the remedy sought is not invalidation of the agency action."). 2. In any event, the relief awarded in this case -- whether labeled an estoppel or not -- is not authorized by the APA. To reopen a long-expired emergency loan program, in the face of a valid regulation establishing a deadline for filing of applications, because of a finding of noncompliance with unrelated agency requirements covering the program is not to "compel agency action unlawfully withheld." 5 U.S.C. 706(1). Under that provision a court might well have enjoined FmHA to comply with its own publicity directive at a time when the loan program was still in operation. Cf. Costle v. Pacific Legal Foundation, 445 U.S. 198, 220 n.14 (1980) (aggrieved party may obtain relief from agency inaction under Section 706(1)); Morris v. Gressette, 432 U.S. 491, 514 (1977) (Marshall, J., dissenting) (Section 706(1) is "expressly designed" to remedy unlawful failures to act). But the relief awarded here is not of that nature. Moreover, the Secretary's refusal to reopen the loan program is not agency action "unlawfully withheld": the court of appeals recognized that the application deadline, the basis on which the program has been closed, is a "legitimate time restriction() set as a prerequisite to applying for governmental benefits." Pet. App. 18a. Nor does reopening the loan program constitute "invalidation of agency action that is arbitrary, capricious, an abuse of discretion, * * * not in accordance with law * * * (or) taken 'without observance of procedure required by law.'" United States v. Calceres, 440 U.S. at 753-754 (footnote omitted), quoting 5 U.S.C. 706(2). Under Section 706(2), the court of appeals could have set aside the regulatory deadline had it not been properly promulgated. See, e.g., Motor Vehicle Manufacturers Ass'n v. State Farm Mutal Automobile Ins. Co., 463 U.S. 29, 41 (1983). But the court of appeals did not rest its action on that ground, and in any event it is beyond question that the regulation establishing the April 2, 1974 filing deadline was lawfully promulgated under the APA (see pages 18-19 & note 11, supra). The court of appeals may have believed that it would be arbitrary or an abuse of discretion for the Secretary not to waive the filing deadline in light of the failure to comply with the publicity regulation and that the court could accordingly direct him to do so. /18/ For a number of reasons, this argument must fail. In the first place, it is fundamentally at odds with Schweiker v. Hansen, supra, and FCIC v. Merrill, supra, both of which involved possibly waivable regulatory conditions on eligibility for government benefits. Applying the reasoning of the decision below, this Court should have held in Hansen that the Social Security Administration acted unreasonably in refusing to waive the written application requirement established by agency rules, in light of its employee's violation of the Claims Manual. And the Court should have held in Merrill that the Federal Crop Insurance Corporation was required to waive the provisions of its regulations precluding issuance of insurance upon crops planted on reseeded acreage, in light of its employee's failure to give correct advice. Of course, these were not the rulings of this Court. The strictures upon application of equitable estoppel of the government established by this Court's decisions cannot be circumvented by manipulating doctrinal labels in the fashion employed by the court of appeals: the mere fact that a requirement might be administratively waivable does not give the courts license to disregard it simply on the basis of a violation of another regulation. This conclusion is reinforced by cases addressing the effect of limitations on the time within which suits may be brought against the federal government. This Court has consistently held that the courts are not authorized to extend or toll statutes of limitations for suits against the United States. See, e.g., United States v. Kubrick, 444 U.S. 111, 117-118 (1979); Soriano v. United States, 352 U.S. 270, 276 (1957); see also United States v. Locke, No. 83-1394 (Apr. 1, 1985). Regardless of the circumstances under which filing deadlines may be waived by the agency itself, principles of sovereign immunity forbid the courts from mandating such a waiver in the absence of express authorization that they may do so. Where, as here, the result of a judicially imposed waiver is in essence an award of damages against the United States, the APA does not provide that authorization. See 5 U.S.C. 702; see also United States v. Testan, 424 U.S. 392, 400 (1976). Finally, even if the courts did have authority to review an administrative decision not to waive the filing deadline at issue here, that decision would not constitute an abuse of discretion. As we have discussed (pages 21-22, aupra), the filing deadline was not dependent on compliance with the publicity directive and in fact served a purpose wholly unrelated to the publicity regulation, i.e., preventing stale claims for funds that would not be used to assist farmers in meeting their immediate emergency needs caused by the natural disaster of 1973. A waiver of the deadline could not at this late date possibly further Congress's purpose in enacting the special emergency loan program but would only provide a windfall to farmers to use as they please. /19/ Because giving full effect to the deadline, notwithstanding violation of the publicity directive, most sensibly furthers the statutory purpose, such action cannot be deemed arbitrary or an abuse of the agency's discretion. See generally, e.g., Capital Cities Cable, Inc. v. Crisp, No. 82-1795 (June 18, 1984), slip op. 15 (deferring to agency's accomodation of statutory policies); Heckler v. Campbell, 461 U.S. 458, 466 (1983) (deferring to agency's implementation of statutory provision); Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285 (1974), quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971) ("'(T)he ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.'"). 3. The court of appeals purported to rely (Pet. App. 2a-3a, 21a & n.29) on the line of cases that mandates that agencies must abide by their own regulations. See, e.g., United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954); Service v. Dulles, 354 U.S. 363, 388 (1957); Vitarelli v. Seaton, 359 U.S. 535, 539-540 (1959); Morton v. Ruiz, 415 U.S. 199, 235 (1974). But cf. American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 538-539 (1970) (in the absence of substantial prejudice, agency has authority to depart from its procedural rules). The question in this case, however, is not whether FmHA could have been required to comply with its publicity regulation but rather the entirely distinct question of what type of relief is available in light of its failure to do so. None of the cited cases suggests that a court may invalidate one regulation in order to rectify a violation of another regulation. Indeed, this Court has made clear that a violation of agency regulations does not render all ensuing agency action a nullity. United States v. Caceres, supra (evidence secured in violation of agency regulations is not subject to exclusion in criminal prosecution). /20/ In most of the Accardi line of cases, an agency had sought to deprive a person of a benefit in a procedurally irregular manner. The relief in each of these cases was simply to set aside the agency's action, while permitting the agency to proceed on remand in compliance with its procedural rules. Thus, in Accardi, the Board of Immigration Appeals allegedly had failed to exercise its independent judgment in considering an alien's request for suspension of deportation; the Court ordered that, if this allegation could be substantiated, the alien was entitled to a new hearing before the Board. 347 U.S. at 268. In Service and Vitarelli, agencies had failed to follow their prescribed procedures for discharging employees. 354 U.S. at 388; 359 U.S. at 545, 546. In each of these cases, the procedural violation was directly related to the agency action that was set aside; in no case did the Court invalidate, as the court of appeals did here, an agency rule unrelated to the violation. Similarly, in Morton v. Ruiz, supra, the agency had denied benefits to an otherwise qualified applicant on the basis of an eligibility condition that had been defectively promulgated because it was not published in the Federal Register as required by the APA and the agency's own rules. See 415 U.S. at 231-235. As the Court noted (id. at 232-233), the APA itself provides that regulations shall be unenforceable in such circumstances. See 5 U.S.C. 552(a)(1). Here, by contrast, the regulation establishing the filing deadline was properly promulgated in accordance with the APA, and its validity was not conditioned on compliance with the publicity directive (see page 21, supra). /21/ Nothing in the Court's cases suggests that the sanction of unenforceability of one regulation is available merely to remedy the violation of a separate regulation. Such a result would make no sense in its own terms, and it would eviscerate the Court's doctrine precluding estoppel against the enforcement of valid conditions on eligibility for government benefits: any agency misstep could be characterized as a reason for holding a regulation invalid, which, of course, would be equivalent in these circumstances to estopping the government from enforcing it. Such a result would ill serve the public interest and would not sensibly encourage agencies to comply with their rules. Cf. Caceres, 440 U.S. at 755-756. CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General BRUCE N. KUHLIK Assistant to the Solictor General ROBERT E. KOPP RICHARD A. OLDERMAN Attorneys DECEMBER 1985 /*/ The complaint named various incumbent and past occupants of these offices as defendants in their individual capacities and sought damages from these defendants. The district court dismissed the claim for damages and no appeal was taken from that ruling. See Pet. App. 6a n.7. Thus, this action survives only against the various federal officials in their official capacities. /1/ By contrast, a different set of loan terms, much more generous to the borrower, had been in effect in 1972, pursuant to Section 5 of Pub. L. No. 92-385, 86 Stat. 557-559. Under the 1972 statute, emergency loans carried a 1% interest rate; eligibility was not conditioned upon unavailability of alternative sources of credit; and borrowers could have 50% of the loan principal, up to $5,000, cancelled at will. Because the 1972 loan program triggered an unprecedented volume of loan applications, resulting in a severe drain on loan funds available to FmHA, the Secretary halted the making of emergency loans on December 27, 1972. In response, on April 20, 1973, Congress enacted Pub. L. No. 93-24, 87 Stat. 24 et seq. Section 1 of that Act repealed Section 5 of Pub. L. No. 92-385. Section 4 of Pub. L. No. 93-24 set a rate of 5% for new emergency loans. Section 3 imposed the requirement that credit be unavailble from alternative sources. A grandfather clause (Section 8, 87 Stat. 25) provided that loans to cover losses arising out of disasters declared prior to December 27, 1972, could still be sought under the 1972 loan program, if application was made within 18 days of the date of enactment -- i.e., by May 8, 1973. Pet. App. 10a-12a, 17a n.24. /2/ Technically, Section 4 provided that notwithstanding the provisions of Pub. L. No. 93-24, which had phased out the more generous loan program that had been in effect in 1972 under Pub. L. No. 92-385, the 1972 loan program terms would remain available to farmers who had suffered losses in natural disasters occurring between December 27, 1972, and April 20, 1973 (the date of enactment of Pub. L. No. 93-24). See page 3 note 1, supra. /3/ Pertinent portions of Special Instruction 441.5 as originally issued are reproduced at Pet. App. 48a-49a. Pertinent portions of the provisions published in the Federal Register are reproduced at Pet. App. 52a-55a. /4/ The reference to the suggested news release was not included in the Federal Register version of the publicity directive. The suggested news release itself is reproduced as Pet. App. 50a-51a. See also Emergency Disaster Loan Ass'n, Inc. v. Block, 653 F.2d 1267, 1272 (9th Cir. 1981) (Boochever, J., concurring, quoting Special Instruction 441.5). /5/ The press release actually employed in Florida is reproduced at Pet. App. 57a-58a. It is identical to the release attached to Special Instruction 441.5. /6/ Respondent also sought damages for himself against the named defendants in their individual capacities (C.A. App. 61a-67a). The district court dismissed the damages claim. Respondent appealed, but his appeal was dismissed because no order had been entered under Fed. R. Civ. P. 54(b). Respondent did not cross-appeal when a final judgment was ultimately entered. The court of appeals accordingly did not pass on the damages claim. Pet. App. 6a n.7. /7/ The court of appeals stayed the judgment of the district court pending appeal (Pet. App. 13a). /8/ In addition, the government argued that respondent Payne, who had actual notice of the special 1974 loan program and had in fact applied for and received a loan, lacked standing to complain that the program publicity was inadequate and was not a proper representative of a class seeking reopening of the loan program. The court of appeals granted a limited remand requested by respondent in this connection. See Pet. App. 13a n.19. On June 7, 1982, the district court entered an amended final judgment naming Carbie Ellie, a member of the class previously certified, as an additional representative plaintiff (id. at 46a-47a). The court of appeals concluded that these developments rendered the standing issue moot (id. at 13a n.19). /9/ Because of this holding, the court of appeals did not reach the question whether, as the district court had held, the publicity provided failed to satisfy other requirements of FmHA regulations, such as the requirement for "such public announcements as appear appropriate" (see page 7, supra). The court also declined to decide whether the latter requirement was too amorphous to be judicially enforceable. Pet. App. 25a. /10/ In Community Health Services, the Court suggested (slip op. 8 n.12) that two of its cases "seem to rest" on the notion that the government may not enforce the law in certain circumstances as the result of misleading conduct. However, the Court in one of those cases, Moser v. United States, 341 U.S. 41 (1951), "expressly rejected any doctrine of estoppel." Community Health Services, slip op. 3 (Rehnquist, J., concurring in the judgment); see 341 U.S. at 47. Rather, the Court held in Moser only that the petitioner there had not knowingly and intentionally waived his right to citizenship, since he had not been advised that his conduct would result in such a waiver (ibid.). The other case cited by the Court in Community Health Services, United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655 (1973), was a criminal prosecution. The Court's decision rested on the absence of fair warning that the conduct in question was proscribed. See id. at 674; Community Health Services, slip op. 3 (Rehnquist, J., concurring in the judgment). The doctrine that agencies may not in certain circumstances apply new rules retroactively, also referred to by the Court in Community Health Services (slip op. 8 n.12), is not grounded on principles of equitable estoppel. Rather, it rests on constitutional due process concerns and the familiar requirements of administrative law that agencies must adequately explain their decisions and must act to further, rather than hinder, proper regulatory purposes. See United States v. Caceres, 440 U.S. 741, 752-753 & n.15 (1979); NLRB v. Bell Aerospace Co., 416 U.S. 267, 294-295 (1974); Atchison, T. & S.F. Ry. v. Wichita Board of Trade, 412 U.S. 800, 806-808 (1973) (plurality opinion); SEC v. Chenery Corp., 332 U.S. 194, 202-204 (1947); see also Automobile Club v. Commissioner, 353 U.S. at 183-184 (refusing to forbid retroactive application of administrative ruling on basis of equitable estoppel). /11/ Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), the agency dispensed with notice and comment and made the regulations immediately effective for good cause, explaining that such action was necessary to "implement() the provisions of Public Law 93-237, and because a delay in implementing the provisions of the public law by this regulation would be contrary to the public interest." 39 Fed. Reg. 7569 (1974) (Pet. App. 52a). /12/ In its opinion on remand from this Court, the court of appeals appeared to suggest (Pet. App. 2a) that this case did not implicate estoppel principles because the government's violation consisted of a failure to act rather than an affirmative misrepresentation. This distinction is wholly without substance. See, e.g., Schweiker v. Hansen, supra (government agent failed to advise claimant to file written application); INS v. Hibi, supra (government failed to publicize naturalization program); see also Restatement (Second) of Agency, supra, Section 8B, comment c (estoppel may arise where person fails to act). /13/ It would, of course, have been a different matter had the application deadline been conditioned by Congress or the agency on compliance with the publicity directive. In that event, requiring the government to reopen the loan program on the basis of a finding that inadequate publicity had been circulated would not have entailed overriding the deadline, for the deadline by its own terms would have been extended. But that is not this case. /14/ The Court noted that the Claims Manual was an internal document without binding legal force, but that observation was made in the context of rejecting the contention that the claims representative's error amounted to "'affirmative misconduct'" (see 450 U.S. at 788-789). Cf. INS v. Hibi, 414 U.S. at 11 (Douglas, J., dissenting) (deliberate attempt to frustrate Congress's purpose could rise to level of affirmative misconduct). Here, the court of appeals expressly declined to rest its decision upon a finding of affirmative misconduct (Pet. App. 21a n.29), correctly recognizing that the case at most involved a failure to act, or "neglect" (ibid.; id. at 19a). Plainly, a mere failure to follow "affirmatively required procedure" (ibid.) is not the kind of misconduct that would "raise a serious question whether petitioner is estopped from insisting upon compliance with (a) valid regulation." Schweiker v. Hansen, 450 U.S. at 790; see also, e.g., INS v. Miranda, 459 U.S. at 18 (negligence does not constitute affirmative misconduct); INS v. Hibi, 414 U.S. at 8-9 ("the failure to fully publicize the rights which Congress accorded" is not affirmative misconduct). Although the question is not raised in this case, we note our view that there should be no affirmative misconduct exception to the doctrine that the government may not be equitably estopped. Barring the government from enforcing the law undermines the purposes behind the rule precluding estoppel whether a government representative's actions were merely negligent or rose to some unspecified higher level of affirmative misconduct. Moreover, it would be perverse to bar the government from enforcing the law only where its agents have acted in such a grossly improper fashion that their conduct could not conceivably have been within the scope of their authority. Finally, the standard has proven unworkable and has generated needless litigation in the lower courts because there is no generally accepted test for what constitutes affirmative misconduct. See generally Schweiker v. Hansen, 450 U.S. at 792 (Marshall, J., dissenting). /15/ Indeed, Ronald Payne, the original named representative of the respondent class, timely applied for and received a loan. See page 6, supra. /16/ The Hansen Court's citation (450 U.S. at 789) of Kennedy and Merrill indicates that it did not intend to modify the established doctrine, represented by those cases, that the government may not be estopped even when private action is irreversible. /17/ The district court's finding of inadequate notice, unlike the court of appeals', did not rest on the regulation quoted in text, 7 C.F.R. 1832.82(a) (1975), but rather on 7 C.F.R. 1832.3(a)(1) (1973), which required that FmHA make "such public announcements as appear appropriate." See Pet. App. 23a-24a, 38a, 42a-43a. Accordingly, the government did not raise the argument that the press release comported with Section 1832.82(a) until its initial rehearing petition (at 14-15). In view of the court of appeals' departure from the district court's reasoning, the issue was adequately preserved below by raising it on rehearing. /18/ As already noted (pages 31-32, supra), the Secretary has not actually been given the opportunity to consider waiving the deadline because no member of the respondent class has even asked for such a waiver in connection with an actual application for benefits under the expired emergency loan program. /19/ The fact that this action was not filed until August 1976, more than two years after the expiration of the loan program and more than three years after the April 1973 flooding, further suggests that respondents cannot reasonably be viewed as seeking assistance in tiding them over that emergency. /20/ The court of appeals apparently believe that it could impose any remedy that it considered equitable once it was established that the agency had violated the publicity directive. It failed to recognize, however, that the case it cited (Pet. App. 21a & n.29) in support of its reasoning, United States v. Heffner, 420 F.2d 809 (4th Cir. 1970), which ordered the exclusion of evidence obtained in violation of an agency rule, is no longer good law in light of this Court's decision in United States v. Caceres, supra. /21/ The Court stated in Morton v. Ruiz that "(b)efore (an agency) may extinguish the entitlement of these otherwise eligible beneficiaries, it must comply, at a minimum, with its own internal procedures." 415 U.S. at 235. The FmHA, however, did comply with all applicable requirements in establishing the April 2, 1974 deadline for filing emergency loan applications. Thus, unlike the eligibility rule that the Court refused to enforce in Morton v. Ruiz, the filing deadline was, as the court of appeals recognized (Pet. App. 18a), a "legitimate * * * restriction() set as a prerequisite to applying for government benefits."